In this Chapter, the Commission examines the extent to which specific categories of persons should be regarded as ineligible for jury service318 and to what extent other categories of person may be excused from service. In Part B, the Commission examines the current categories of persons who are ineligible for jury service, which comprises the President of Ireland, a specific list of persons connected with the administration of justice (including judges, lawyers in practise and members of the Garda Síochána) as well as members of the Defence Forces. In Part C, the Commission examines the group of persons who may be excused as of right from jury service, including health care professionals (such as doctors, nurses and veterinary surgeons), civil servants, ordained clergy and teachers. The Commission discusses whether this approach to excusal should be replaced with a general provision on excusal for good cause, which is currently available to any person who does not come within the category of persons who are ineligible or excusable as of right. In Part D, the Commission discusses proposals for deferral of jury service to complement the provisions on excusal for good cause.
RPersons Ineligible for Jury Service: President of Ireland, Persons Concerned with Administration of Justice and Members of the Defence Forces
(1)Current Position in Ireland
Schedule 1, Part 1 of the Juries Act 1976 provides that the following are ineligible for jury service: the President of Ireland, a specific list of persons and professions connected with the administration of justice and members of the Defence Forces.
The list in the 1976 Act under the heading “Persons concerned with administration of justice” comprises the following:
Members of the Reserve Defence Force while in receipt of pay for such service or duty.
Walsh has commented that the exclusion of a very wide range of persons associated with the administration of justice “is a well-established feature of jury composition in the common law world” and that is based on two related aspects of the function of a jury. Firstly, it is “a vital element in protecting the jury’s essential image as a representative body of laypersons which provides a critical balance to the legal professionals in the administration of justice.” Second, excluding such persons from jury service is related to “the need to avoid the appearance of bias which may result if such personnel were to sit in their capacity as ordinary citizens determining whether their colleagues had proved a case beyond a reasonable doubt.”319
The Commission agrees that the exclusion of these categories of persons is important in order to reinforce the impartiality of the jury, one of the guiding principles set out in Chapter 1 of this Report. Were such persons to be eligible for jury service there is the risk that they may be deferred to in the jury room on the basis of their status or legal knowledge or that they may have information (or access to it) about the defendant or the victim that is not presented in evidence at trial. This rationale was also noted during the Oireachtas debates on the 1976 Act.320
(2)Comparative and International Law Approaches
As pointed out by Walsh, most jurisdictions continue to apply an approach to ineligibility that is broadly comparable to that in the 1976 Act, although the Commission acknowledges that a small number have moved significantly towards a view that all professions should be eligible for jury service. Among the first to do this was the state of New York which, in 1993, launched a New York Jury Projectwith the general aim of making juries more representative of the communities from which they were selected thus making the jury system itself fairer and more efficient.321 The outcome was that New York state law removed all previous statutory occupational exclusions and exemptions, including those connected with the administration of justice. Other states in the United States have also limited the ineligibility list, but many still exclude members of professional fire and police forces and members of the armed forces on active duty.322
The only common law jurisdiction of which the Commission is aware to have followed the New York approach is England and Wales. The 1965 Report of the Departmental Committee on Jury Service (the Morris Committee) recommended that persons involved in the administration of justice should continue to be ineligible for jury service in England and Wales,323 and this was implemented in the Juries Act 1974,as enacted. Between 1974 and 2001, a number of reviews had accepted that it was appropriate to continue the exclusion of persons connected with the administration of justice.324 The 2001 Auld Review recommended, however, that in terms of eligibility for jury service no distinction should be drawn between professions or occupations and it rejected the suggestion that other members of the jury would be unduly influenced by the presence of a judge, a lawyer or a police officer.325It also considered that, in terms of the potential for bias, or the perception of bias, this could be dealt with by the trial judge on a case-by-case basis. It accordingly recommended that the exclusion of these persons from jury service should be removed and this was implemented by amendments to the 1974 Act made by the Criminal Justice Act 2003. The effect of this is that the 1974 Act, as amended in 2003, provides that virtually all persons involved in the administration of justice, including judges, lawyers and police officers, are eligible to serve on juries in England and Wales.
The changes made in 2003 have been described as controversial, and Hungerford-Welch has noted that one effect is that, since 2003, “the composition of the jury has been a frequent ground of appeal against conviction.”326 In R v Abdroikov, Green and Williamson,327 the UK House of Lords (since 2009 replaced in its judicial capacity by the UK Supreme Court) dealt with appeals from three separate trials, the first two involving a jury that included a serving police officer, and the third involving a solicitor employed by the Crown Prosecution Service (CPS). The House of Lords reviewed the changes in the 1974 Act arising from the Auld Review, and held that, in enacting the 2003 Act, the UK Parliament must have been aware of the test for apparent jury bias but that it must have also concluded that it was appropriate to move from excluding certain persons from eligibility to virtual universal eligibility. In that respect it considered that the UK Parliament must have considered that the risk of bias in the case of serving police officers or CPS solicitors was manageable within the system of jury trial. It also noted, however, that the expectation expressed in the Auld Report that doubtful cases would be resolved by the trial judge was not possible where neither the judge nor counsel knew that the juror was a police officer or CPS solicitor.
In Abdroikov, the House of Lords concluded that the first defendant’s conviction could stand but it quashed the other two. In the case of the first defendant, the trial did not turn on a contest between the evidence of the police and of the defendant, and it would have been difficult to suggest that unconscious prejudice, even if present, would have been likely to operate to his disadvantage. In the second defendant’s trial, however, there was a crucial dispute on the evidence between the defendant and the police officer who was the alleged victim; since the victim and the police officer on the jury shared the same local service background, the instinct of a police officer juror to prefer the evidence of a brother officer to that of a drug-addicted defendant would be judged by the fair-minded and informed observer to be a real and possible source of unfairness, beyond the reach of standard judicial warnings and directions. In the third defendant’s trial, the House of Lords agreed that justice was not seen to be done where one of the jurors was a full-time, salaried, long-serving employee of the prosecutor, the CPS.
The approach recommended by the Auld Report has not been followed in Northern Ireland or Scotland. In Northern Ireland, the Juries (Northern Ireland) Order 1996 continues to deem ineligible for jury service persons connected with the administration of justice, including members of the judiciary, solicitors and barristers.328 During 2008 and 2009 the Scottish Government conducted a review of its juries legislation. In a 2008 Consultation Paper,329 it pointed out that the rationale for the exclusion of those working within the justice system is that they could have knowledge of the case or those involved in bringing or defending the case, or access to systems such as computerised records about cases or individuals, which could interfere with their impartiality. It added that “[i]n a relatively small jurisdiction such as Scotland, the risk of conflicts of interest is real and should be minimised” and that the wholesale exclusion of those working in the criminal justice system was a response to this.330 It also noted that the English 2003 reforms had given rise to difficulties, such as those noted above, and that they had created a new procedural layer in the jury selection process that was not consistent with fairness or efficiency. While inviting comments on whether the English approach should be adopted in Scotland, it noted that “the objectivity and impartiality of jurors should not be compromised.”331 In its 2009 review of the consultation process that followed, the Scottish Government stated that it did not intend to amend the “ineligible for jury service” list, pointing out that the responses to the consultation did not indicate a strong appetite for change. It added that there was “a strong indication from respondents that it would be unwise to open up jury duty to those who work within the justice system.”332 Similar views were expressed by consultees in Northern Ireland when the Northern Ireland Court Service carried out a public consultation between 2008 and 2010 on Widening the Jury Pool.333
In the Australian states and territories the relevant legislation on jury service continues to render ineligible persons connected with the administration of justice. In 2010, the Law Reform Commission of Western Australia, having reviewed the matter extensively, concluded that the key elements of such restrictions should remain in place, so that judges, lawyers in practice and those closely connected to the administration of justice such as coroners would continue to be ineligible for jury service.334 Thus, the Western Australia Juries Act 1957, as amended by the Juries Legislation Amendment Act 2011, continues to render ineligible persons connected with the administration of justice.
In terms of international law, the European Court of Human Rights (ECtHR) has held that the right to a fair trial under Article 6 of the European Convention on Human Rights (ECHR) may be violated by the presence on the jury of a serving police officer. In Hanif and Khan v United Kingdom335the applicants had been convicted of drugs offences by a jury that included a police officer who knew one of the police officers giving evidence and had worked with him previously. The trial judge allowed the police officer to sit as a juror, and he subsequently became the foreman. The applicants appealed their convictions on this basis, but the convictions were upheld by the English Court of Appeal, and the UK House of Lords refused the applicants leave to appeal. The ECtHR noted that, of the 13 jurisdictions it had surveyed,336 only three (Belgium, England and New York) permitted police officers to serve on juries. The ECtHR did not conclude that police officers could never be permitted to serve on juries but that because English law was in a significant minority on this point it had to be regarded with careful scrutiny. In the case, the ECtHR held that the right of the applicants to a fair and impartial hearing had been violated.
(3)Consultation Paper Recommendations
In approaching the list of ineligible persons in the Consultation Paper, the Commission took into account the small population in the State and the relatively small numbers of persons connected with the administration of justice. It noted that if all categories of ineligibility were removed, it would be extremely difficult to establish independent and objective juries.337 The Commission therefore provisionally recommended that the following categories of persons continue to be ineligible for jury service: the President,338 members of the judiciary,339 retired members of the judiciary,340 coroners and deputy coroners,341 the Attorney General and members of staff of the Attorney General,342 the Director of Public Prosecutions and members of staff of the Director of Public Prosecutions,343 practising barristers, solicitors and solicitors’ apprentices,344 members of An Garda Síochána,345 prison officers and other persons employed in a prison or place of detention,346 persons working in the Probation Service,347 and persons in charge of, or employed in, a forensic science laboratory.348
The Commission provisionally recommended that clerks and other persons employed on work of a legal character in solicitors’ offices, and members of the Permanent and Reserve Defence Forces,349 should be eligible for jury service.350
The Commission invited submissions on whether persons employed to take court records (stenographers),351 and officers attached to a court,352 are sufficiently connected to the criminal justice system to merit their continued ineligibility for jury service.
The Commission provisionally recommended that civilians employed in the Garda Síochána continue to be eligible for jury service:353 such persons are not currently included in Schedule 1 of the 1976 Act. The Commission also provisionally recommended that retired members of An Garda Síochána should not be eligible for jury service until three years after retirement and that retired Gardaí selected for jury service should inform the court of their former occupation.354
(4)Submissions and Final Recommendations
In the submissions received and in the further consultative meetings held by the Commission there was general agreement that the President of Ireland should continue to be ineligible for jury service particularly having regard to his or her constitutional role.
There was also general agreement that those most closely associated with the administration of justice should continue to be ineligible for jury service. Thus consultees were in general agreement that members of the judiciary and persons employed in the offices of the Director of Public Prosecutions and of the Attorney General (which includes the Chief State Solicitor) should continue to be ineligible. There was also general agreement that members and staff of the Garda Síochána Ombudsman Commission should be ineligible to serve (which would reflect the comparable position in Northern Ireland). These views were influenced by the small size of the State and the connected risks discussed in the Consultation Paper to the impartiality of the jury (actual or perceived) and which (as discussed above) had also been adverted to by the Scottish Government in its review of the Scottish jury system in 2008 and 2009.
As to whether practising solicitors and barristers should serve, the majority of consultees considered that they should continue to be ineligible. A minority of consultees suggested that solicitors and barristers, whether practising or not, should be eligible for jury service and that, if called, a solicitor or barrister could indicate to the court whether there was a specific reason why he or she should not be a juror in a specific case.
As to whether officers attached to a court should be eligible to serve, it was also noted that there was the possibility that other jurors could be influenced by the level of knowledge that such persons would bring to the deliberations. A similar view was expressed concerning stenographers, and it was also noted that the role of stenographers was being replaced by the computer-aided real time transcription (CART) system being introduced into refurbished courtrooms.355 Consultees also noted that, since the enactment of the Juries Act 1976, as the Courts Service has been established (under the Courts Service Act 1998) the reference to officers attached to a court should also refer to employees of the Courts Service.356
A large majority of consultees agreed that, for the same reasons already discussed (possible deference by other jurors and the risk of bias), members of the Garda Síochána should be ineligible for jury service, with a minority suggesting that that they be eligible after a number of years following retirement. There was also general agreement that civilian persons employed in the Garda Síochána should be ineligible.
There was general agreement that members of the Defence Forces should be eligible to serve on juries.
Having considered these views, the Commission notes the importance of the guiding principle in Chapter 1 that jury members must be, and be seen to be, independent and unbiased. It could be suggested in this respect that the list of persons who may be regarded as ineligible to serve on juries in civil cases need not be as extensive as the list that would apply to criminal trials. Having considered this matter, the Commission has concluded that any such differences do not warrant providing for two separate lists of ineligible persons. The Commission also considers that a significant factor in this respect is the small size and population of the State, which necessarily means that the number of persons currently ineligible under the 1976 Act, including those involved in the administration of justice, is small in number and that, reflecting the nature of Irish society generally, they are often well acquainted with each other through work-related and social interaction. The Commission notes that this factor influenced the analysis by the Scottish Government when in 2008 and 2009 it reviewed this aspect of jury service in Scotland, which has a comparable population. The Commission agrees with the thrust of that analysis, which militates strongly in favour of continuing the current list of persons who are ineligible for jury service. In order to ensure the independent and unbiased nature of juries, therefore, the Commission has concluded that, subject to some minor alterations which are set out in the recommendations below, it is appropriate to retain the list of ineligible persons currently contained in Schedule 1 of the Juries Act 1976.
The Commission recommends that the President of Ireland should continue to be ineligible for jury service.
The Commission recommends that members of the judiciary, and retired members of the judiciary, should continue to be ineligible for jury service.
The Commission recommends that coroners and deputy coroners should continue to be ineligible for jury service.
The Commission recommends that the Attorney General and members of the staff of the Attorney General should continue to be ineligible for jury service.
The Commission recommends that the Director of Public Prosecutions and members of the staff of the Director of Public Prosecutions should continue to be ineligible for jury service.
The Commission recommends that practising barristers and solicitors should continue to be ineligible for jury service.
The Commission recommends that solicitors’ apprentices, clerks and other persons employed on work of a legal character in solicitors’ offices should continue to be ineligible for jury service.
The Commission recommends that officers attached to a court (which, having regard to the establishment of the Courts Service under the Courts Service Act 1998, should also include employees of the Courts Service) continue to be ineligible for jury service.
The Commission recommends that persons employed to take court records (stenographers) continue to be ineligible for jury service.
The Commission recommends that serving members of An Garda Síochána should continue to be ineligible for jury service.
The Commission recommends that retired members of An Garda Síochána should no longer be eligible for jury service.
The Commission recommends that civilians employed by An Garda Síochána who perform entirely administrative functions should be eligible for jury service.
The Commission recommends that Commissioners and staff of the Garda Síochána Ombudsman Commission be ineligible for jury service.
The Commission recommends that prison officers and other persons employed in a prison or place of detention should continue to be ineligible for jury service.
The Commission recommends that persons working in the Probation Service should continue to be ineligible for jury service.
The Commission recommends that persons in charge of, or employed in, a forensic science laboratory should continue to be ineligible for jury service.
The Commission recommends that members of the Permanent Defence Force, and members of the Reserve Defence Force while in receipt of pay for any service or duty, should be eligible for jury service.
